Israel

International Focus

The Israeli parliament,
the Knesset, unanimously passed the Freedom of Information Law on 19 of
May 1998. Justice
Minister Tzachi
Hanegbi described
the law’s passing as a step towards an administration “that is open, available,
accessible to every citizen and every resident, and a more democratic and
healthier society”, a turning point in “the relationship between the citizen
and government authorities” [1].

The legislation, which
subsequently came into effect in 1999, can be seen as the culmination of a
number of progressive Supreme Court rulings and extensive lobbying efforts by campaign
groups such as the Coalition for Freedom of Information. These efforts
contributed to a change in prevailing attitudes of both the Israeli
establishment and civil society about the ownership of public information, and
Israeli citizens’ right to know [2].

Background and History

Lacking a written constitution or a specific
statutory authority guaranteeing the freedom of Information, the public’s expectations
regarding access to information held by public authorities was previously
determined by court judgements [2]. A series of influential Supreme Court
rulings provide an illuminating account of the development of prevailing
attitudes towards the public’s right to access information held by the
administration.

In 1973, a former employee of the
Israel Defence Force appealed against the prohibition of the publication of his
book containing publicly held information. Whilst there are issues with the
specifics of the case [3], the overriding importance assigned to executive
discretion and the government’s ownership of information was clear. The Supreme
Court ruled that the information was “not a commodity” and that the state had “the
right to use (or refrain from using) as it deems proper, for its own needs and
purposes“[1]. The dominant view was that the government should be allowed to
act with minimal public supervision. This view was cultivated by several
factors including a centralised political culture, a delicate security
situation, and a large immigrant population with low awareness of their rights
[1].

Throughout the 1980’s however, came
the first signs of a change in the Court’s attitude regarding access to
government information. Characterised by contradictory decisions, some judges
remained unconvinced of the obligation for authorities to disclose information,
whereas other rulings promoted the public's right to know [1].

The tipping point came in the Shalit
case of 1990 where a group of citizens requested sight of the pre-government
agreements signed by officials. The Supreme Court ruled that the information
could not be withheld as it “belongs to the public” [1], citing the Israeli
citizens’ right to be informed about the political process, the importance of
public scrutiny, and the confidence that access to information would instil as
being central in the decision.

This momentum was supported by the Coalition
for Freedom of information who formed soon after in 1992: a collective of NGOs
who lobbied and campaigned for legislation securing the public right to
information. The Coalition are credited with initiating the law that was
eventually presented to and, following amendments, approved by the Knesset.

The Legislation

The Law states that “every Israeli
citizen and resident has the right to obtain information from a public
authority”, defining information as that which is “in the possession of a
public authority, whether written, recorded, filmed, photographed, or
computerized”[4]. The government, Knesset, president, courts, local
authorities, and any other state controlled agency performing a public
function, are all subject to the legislation.

Requests are to be submitted in
writing, acknowledged immediately by the authority, with a response to be
provided within 30 days, though an extension to 60 days is available if
required. Requests can be rejected if they require an “unreasonable allocation
of resources” [4], if the material cannot be located or is no longer held and if
the information has already been published, the authority will refer the
applicant to the appropriate location.

The law requires the heads of
institutions to internally appoint an employee to be responsible for managing
the implementation of the law and responding to requests. Guidelines are also
set out for the periodic publication of a report explaining the main functions,
activities and responsibilities of the institution, as well detailing how the
requirements of the legislation have been implemented and adhered to by the
authority.

One notable aspect of the regime is the legislation did not establish an independent regulatory
body such as an Information Commissioner’s office to oversee the implementation
of the legislation, resolve disputes, impose sanctions, or provide guidance to
public authorities and officials. Instead, individuals denied information are
able to challenge the refusal through the administrative courts who will
administer a public interest test.

Exemptions
and Limitations

The exemptions cover areas similar to
most existing FOI laws such as information concerning policy still being
formed, information relating to law enforcement, information provided in
confidence and information that if disclosed would prevent an authority from
properly carrying out its duties.

When considering a refusal under an
exemption the official must take into consideration “the interest of the
applicant in the information, if cited in the request, and the public interest
in the disclosure of the information, for reasons of maintaining public health,
security, or the environment” [4], a provision broadly similar to most FOI
regimes. The Law also includes some progressive measures to ensure that
exemptions will not be misused stipulating that disclosable information will
not be withheld solely because it appears alongside some exempt information [2].

Absolute exemptions include information
concerning national security and foreign affairs, information that if disclosed
would infringe the privacy of others, and information that is withheld in
accordance with other legislation. In addition, as a set of institutions the
Israeli Security and Intelligence services are entirely exempt from the scope
of the FOI legislation.

Recent developments

Recent assessments suggest that the
achievements and effectiveness of the Israeli FOI Law have been limited by poor
implementation and low levels of awareness amongst both officials and the
public. The change in the culture of centralisation and ‘reallocation’ of the
ownership of public information to the Israeli citizens that was hoped for has
not materialised, with government ministries said to be more concerned with how
they can utilise exemptions to refuse requests rather than facilitating the
public’s right to know [7]. However many blame this on the insufficient training
and lack of supportive environment that FOI officials have found themselves in
[1]. There has also been a lack of interest shown by requesters, with most ministries
receiving less than 100 requests each year [5]. Recent figures show that only
0.5 out of every 1000 citizens in Israel submit a request each year, as opposed
to 5 in every 1000 in USA [7].

Seemingly taking note of the criticism
received, the Israeli administration has recently introduced measures aimed
improving the effectiveness of the law and the application of its requirements.
As a member of the Open Government Partnership, an international initiative
concerned with the promotion and development of open data and transparency,
Israel announced its commitment to establish a Freedom of Information Unit housed
in its Ministry of Justice [6].

The Unit will make broad policy decisions,
determine guidelines and publicise Government information and conduct training
and consultations for FOI officials. The Unit will also seek to resolve
complaints made against offices and their handling of requests, as well as
maintaining a freedom of information website and raising public awareness. The
move has been praised by the Movement for Freedom of Information in Israel [8],
and the extent to which the Israeli administration and its new FOI Unit achieve
their objectives will be independently assessed in 2013 as part of its OGP
membership.

Bibliography

[1] Rabin, Y and Peled, R (2005)
Between FOI Law and FOI Culture: The Israeli Experience. Open Government, A
Journal on Freedom of Information,1:2